At The Huffington Post, Mike Sacks reports on yesterday’s Supreme Court oral arguments in the consolidated cases of Dorsey v. United States and Hill v. United States. At issue are the sentences handed down to two crack cocaine dealers, Michael Dorsey and Corey Hill, who were convicted shortly before President Barack Obama signed the Fair Sentencing Act of 2010 into law. Since the point of the Fair Sentencing Act was to reduce the mandatory minimum penalties associated with crack cocaine by bringing them more in line with the penalties associated with the powdered version of the drug, Dorsey and Hill would like to be re-sentenced under the new federal law. Yet as Sacks explains, Congress “did not explicitly say whether the new law should apply to those, like Hill and Dorsey, whose convictions and sentencings straddled the law's passage.” As Sacks reports, the Court seemed evenly divided on what to do next:
Stephen Eberhardt, the lawyer for the two men, told the justices on Tuesday that common sense and decency compelled the Supreme Court to throw out his clients' harsher sentences calculated under the old regime. "Why would Congress want district courts to continue to impose sentences that were universally viewed as unfair and racially discriminatory," he asked in his introduction.
Common sense and decency must reckon with a federal statute passed in 1871 that says when Congress repeals or revises a law, Congress must "expressly provide" for the new law's retroactive application. Supreme Court case law has since watered down that command, but just how much was the subject of debate during the oral argument.
Eberhardt said that Congress need only make a "fair implication" that the Fair Sentencing Act was designed to reach his clients. Justice Antonin Scalia read the court's precedents more strictly.
"[O]ur cases uniformly say that it has to be clear implication, unquestionable implication," Scalia said.
Eberhardt, to his detriment, resisted Scalia's determination. Chief Justice Roberts and Justice Anthony Kennedy then piled on, leaving Eberhardt, who was arguing his first high court case, deflated. Not even Justice Ruth Bader Ginsburg's effort to defend the "fair implication" standard could save him.